Litigation Highlight: Fifth Circuit Panel Strikes Down Federal Unlawful User Ban
On August 9, a unanimous Fifth Circuit panel invalidated the federal ban on unlawful users of controlled substances possessing firearms, as applied to a habitual user of marijuana, in United States v. Daniels. While a handful of district courts had reached similar conclusions on this provision of federal criminal law—including the February decision in Harrison that we covered here—the Fifth Circuit was the first circuit to consider the post-Bruen constitutionality of the “unlawful user” ban.
During a traffic stop, officers found two loaded firearms and marijuana cigarette butts in Daniels’ car. The officers did not conduct a drug test or ask whether Daniels was intoxicated at the time of the stop. Daniels later admitted to being a regular marijuana user (“approximately fourteen days out of the month”), and was charged under 18 U.S.C. § 922(g)(3)—which makes it a federal crime for anyone “who is an unlawful user of or addicted to any controlled substance” to possess a firearm. After Bruen, Daniels moved to dismiss his indictment, arguing that (g)(3) is unconstitutional under the Second Amendment. The district court, as most courts have done post-Bruen, upheld the law and “compared § 922(g)(3) to laws disarming felons and the mentally ill that Heller called ‘presumptively lawful.’” Daniels was subsequently convicted at trial, sentenced to a lengthy prison term, and appealed.
The Fifth Circuit first addressed “the threshold question: whether the Second Amendment even applies to Daniels.” The panel held that Daniels is “a member of our political community” and thus “has a presumptive right to bear arms.” While acknowledging the Supreme Court’s reference to “law abiding” citizens in both Heller and Bruen, the court declined to “read too much into the Supreme Court’s chosen epithet” and suggested that this term did not indicate a limitation broader than “traditionally understood restrictions on the right to bear arms.” At Bruen step two, the court first observed that “the Founding generation had no occasion to consider the relationship between firearms and intoxication via cannabis” and, therefore, found that Bruen requires only “relevantly similar” historical analogues. The opinion then considered three different categories of potential analogues offered by the government for the “unlawful user” ban: “(1) statutes disarming intoxicated individuals, (2) statutes disarming the mentally ill or insane, and (3) statutes disarming those adjudged dangerous or disloyal.”
As to laws dealing with intoxication and firearms, the court noted that the Founding Era record is sparse. Colonial laws were animated by different purposes, such as gunpowder conservation, and did not prohibit gun possession. Militia laws, the court said, applied only in that context and were intended “to ensure a competent military” rather than to protect public safety. The court seemed generally unwilling to seriously consider a handful of Reconstruction era state bans on carrying guns while intoxicated—the panel suggested that these laws were too few, too new, and narrower than (g)(3)’s possession ban.
Next, the government pointed to a tradition of disarming the mentally ill. While there were not necessarily specific disarmament statutes throughout history targeting mentally-ill individuals, the government argued that widespread institutionalization meant that the mentally ill necessarily also lost the right to possess guns. While the court was willing to accept that intoxication by marijuana might be akin to temporary mental illness, it held that the historical evidence did not support “disarming a sober citizen who is not currently under an impairing influence.”
Finally, the government argued more broadly that “Congress can limit gun possession by those ‘dangerous’ to public peace or safety,” consistent with history. Here, the government pointed to laws disarming political dissidents and religious minorities based on judgments of perceived dangerousness, the Militia Act of 1662 and its allowance for disarming those “dangerous to the Peace of Kingdome,” and unadopted proposals in state ratifying conventions to limit the Second Amendment to “peaceable citizens” or non-criminals. The court found that, taken “[t]ogether, th[is evidence] suggest[s] a public understanding that when a class of individuals was thought to pose a grave danger to public peace, it could be disarmed.”
Rejecting the idea that legislatures have “unchecked power to designate a group of persons as ‘dangerous’ and thereby disarm them,” the opinion instead explained that courts should “analogize to particular regulatory traditions instead of a general notion of dangerousness.” The panel then applied this approach to the government’s proffered analogues. Ultimately, the court held that “[t]he government identifies no class of persons at the Founding (or even at Reconstruction) who were ‘dangerous’ for reasons comparable to marihuana users.” Therefore, the panel struck down 922(g)(3)—clarifying, however, that “[w]e do not invalidate the statute in all its applications, but, importantly, only as applied to Daniels.”
Judge Stephen Higginson filed a concurrence noting that he “fully concur[s] in the majority’s reasoning,” but also observing “that courts, operating in good faith, are struggling at every stage of the Bruen inquiry.” Judge Higginson’s concurrence reads as a plea for the Supreme Court to clarify at least some of these questions in Rahimi, and forcefully concludes by observing that:
To read the Second Amendment as providing an ever-expanding individual right, without limits . . . runs counter to both its text and the Framers’ own understanding.
Daniels (as with other decisions invalidating 922(g)(3) such as Harrison) strikes down the unlawful user ban only in certain applications—namely, as applied to a habitual marijuana user such as Daniels who was not actively under the influence of marijuana while possessing a firearm.[1] That said, it’s hard to imagine how the result would be any different in a case where someone is convicted under 922(g)(3) for consistent use of a non-marijuana controlled substance: cocaine, heroin, psychedelics, and so on. There’s no Founding era history of possession bans based on habitual intoxication or drug use, period, and the reasoning in Daniels seems to dictate that—for all controlled substances—the broadest regulation that is even possibly consistent with the Second Amendment is a ban on carrying guns while under the influence. The type of drug at issue does not seem to impact the court’s holding at step one that drug users are part of the political community. Moreover, the historical-analogue approach in Daniels would almost certainly produce the same outcome in a non-marijuana 922(g)(3) case: historical intoxication bans and treatment of the mentally ill would support, at most, a ban on carrying while under the influence (not a general possession ban like (g)(3)), and a cocaine user is dissimilar from a Founding era loyalist or Catholic in the same ways as a marijuana user and thus not analogously dangerous in the panel's view. Therefore, despite the opinion’s careful language, I think it’s fair to read Daniels to strongly suggest that this panel would facially invalidate 922(g)(3)’s possession ban.
Daniels illustrates vividly how Bruen makes efforts to accommodate Second Amendment rights with risks presented by the combination of drug use and firearms very difficult. Historical legislatures did not have nearly the same understanding as we do today of the different cognitive impacts of various controlled substances (somewhat ironically, Daniels leads with a cogent observation on this very point: even though hemp was known at the Founding, people at the time “were not familiar with widespread use of marihuana as a narcotic”). At the most basic level, substances that cause one to “experience[e] vast changes in how they perceive reality” will be far more dangerous when combined with firearms than substances that do not have such an impact. As Daniels shows, there’s little reason to believe Founding era legislatures would have appreciated this difference the way we do today (or, indeed, that they would have envisioned the “drug trade” and a large “consumer” market for such substances at all).
To me, at least, the major blind spot in Daniels is its failure to consider empirical evidence when weighing whether a historical tradition of disarming dangerous (or non-law-abiding, non-responsible) individuals might support 922(g)(3). If the touchstone is dangerousness or irresponsibility, then it should not matter so much that modern drug users are not dangerous or irresponsible in the same way as groups disarmed at the Founding. Rather, the question is whether the legislature based its judgment on the same broad historically-supported principle and whether the connection to dangerousness or irresponsibility today is borne out by empirical evidence. While other courts have upheld 922(g)(3) under this rationale as applied to marijuana users, changes in the legal status of marijuana at the state level and studies showing a lack of connection between marijuana use and crime[2] may well change the calculus for marijuana users and allow successful as-applied challenges. The same may not be true for users of many other controlled substances, namely those that distort the user’s perception of reality.
[1] While the government appears to have conceded this point, it’s more accurate to say there was no proof that Daniels was under the influence when he was stopped with firearms. In fact, it seems at least possible—based on the circumstances of the traffic stop and his subsequent admission of regular marijuana use—that Daniels was under the influence of marijuana but that the officers simply failed to obtain any proof of this.
[2] For example, a 2013 report indicated that, “[e]ven though marijuana is commonly used by individuals arrested for crimes, there is little support for a contemporaneous, causal relationship between its use and either violent or property crime.”